Kentucky Riverkeeper, Inc. v. Midkiff

• Decision Date: 14 July 2011
• Docket Number: Civil Action No. 05–181–DLB.
• Citation: 800 F.Supp.2d 846
• Parties: KENTUCKY RIVERKEEPER, INC., et al., Plaintiffs v. Colonel Raymond G. MIDKIFF, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

800 F.Supp.2d 846

KENTUCKY RIVERKEEPER, INC., et al., Plaintiffs

v.Colonel Raymond G. MIDKIFF, et al., Defendants.

Civil Action No. 05–181–DLB.

United States District Court,E.D. Kentucky,Southern Division,at Pikeville.

July 14, 2011.

James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, Joseph M. Lovett, Buckhannon, WV, Stephen A. Sanders, Whitesburg, KY, for Plaintiffs.

Cynthia J. Morris, Paul Cirino, Ruth Ann Storey, U.S. Department of Justice, Washington, DC, Thomas Lee Gentry, U.S. Attorney's Office, London, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

Plaintiffs Kentucky Riverkeeper, Inc. (“Riverkeeper”), Kentuckians for the Commonwealth, Inc. (KFTC) and Kentucky Waterways Alliance, Inc. (KWA) commenced this action for declaratory and injunctive relief challenging the United States Army Corps of Engineers' (“the Corps”) nationwide permitting program, and, specifically, its use in Kentucky, and throughout the Appalachian region generally, to issue permits for mining activities by, among others, the Intervenors and/or their members. Plaintiffs allege violations of the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq., National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) and seek to enjoin the Corps from authorizing further discharges of dredged or fill material under nationwide permits 21, 49 and 50.

This matter is before the Court on the parties' renewed cross motions for summary judgment (Docs. # 179, 181, 183). The motions have been fully briefed (Docs. # 179–187), and the motions are now ripe for review. For the reasons set forth below, Plaintiffs' Renewed Motion for Summary Judgment (Doc. # 179) is DENIED, and Defendants' Renewed Cross–Motion for Summary Judgment (Doc. # 183) and Intervenors' Cross–Motion for Summary Judgment (Doc. # 181) are GRANTED.

I. STATUTORY AND REGULATORY FRAMEWORK

A. Clean Water Act (CWA)

The congressionally-expressed goal of the Clean Water Act (CWA) “is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). In furtherance of this goal, the CWA prohibits the discharge of any “pollutant” into “navigable waters” of the United States without a permit. See 33 U.S.C. §§ 1311(a), 1344(a). Under the CWA, the Secretary of the Corps has authority to issue two types of permits for the discharge of dredged or fill material: (1) individual permits and (2) general permits. 33 U.S.C. § 1344. Individual permits may be issued under § 404(a) “after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344(a). On the other hand, general permits, which authorize “categor[ies] of activities” rather than individual projects, may be issued under § 404(e) on a state, regional or nationwide basis. Id. § 1344(e)(1). That section provides that:

the [Corps] may, after notice and opportunity for public hearing, issue general permits ... for any category of activities involving discharges of dredged or fill material if the [Corps] determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Any general permit issued under this subsection shall ... set forth the requirements and standards which shall apply to any activity authorized by such general permit.

Id. The Corps provides prior notice and opportunity for public comment by publication in the Federal Register and by District Public Notice. 5 U.S.C. § 553(b).

General permits must also be issued in accordance with the CWA § 404(b)(1) Guidelines developed by the Administrator of the U.S. Environmental Protection Agency (EPA) and published in 40 C.F.R. § 230, as well as in accordance with the Corps' own regulations. 33 C.F.R. § 320.2(f). The Guidelines prohibit discharges that “will cause or contribute to significant degradation of the waters of the United States.” 40 C.F.R § 230.10(c). The Guidelines require the Corps to analyze more than fifteen different factors that could be impacted by activities authorized by a general permit. Id. §§ 230.1–.7. The Guidelines stress the consideration of practicable alternatives, the analysis of impacts of the fill material on the aquatic area, and the minimization of the adverse effects of the discharges. See id. §§ 230.10, .11, .70–.77.

The Guidelines further provide that in order for the Corps to reach the determination that the category of activities are (1) similar in nature, (2) will have only minimal adverse effects when performed separately, and (3) will have only minimal cumulative adverse effects on the environment, the Corps “shall set forth in writing an evaluation of the potential individual and cumulative impacts of the category of activities to be regulated under the General permit.” Id. § 230.7(b). The evaluation must be completed prior to the General permit being issued, and the results must be published with the final permit. Id. In addition, the EPA may veto the issuance of a permit by the Corps if the discharge of material at the site will have an “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c); see also 33 C.F.R. § 320.2(f). Moreover, under the Corps' regulations, the Corps must also conduct a detailed public interest review that analyzes twenty different factors, in which “[t]he benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1).

General nationwide permits are not open-ended. Rather, nationwide permits may not be issued for a period of more than five years, during which time the Corps retains the authority to modify, reissue or revoke the permits. Id. § 330.6(b). Additionally, the Corps “may require an individual permit for any proposed activity under a General permit where the nature or location of the activity makes an individual permit more appropriate.” 40 C.F.R. § 230.7(b)(2). The Corps also uses compensatory mitigation to “offset environmental losses resulting from unavoidable impacts....” 33 C.F.R. § 332.3(a)(1). Permissible mitigation methods include restoration, enhancement, establishment, preservation, and even an in-lieu fee program. Id. § 332.3(a), (b). An in-lieu fee program is “a program involving the restoration, establishment, enhancement, and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for [Department of the Army] permits.” Id. at § 332.2.

Provided that all applicable conditions of the general permit are satisfied, a proposed activity falling within a pre-approved general permit category may be authorized, without the need to obtain an individual permit. Id. §§ 320.1(c), 330.1(c), 330.4(a), 325.5(c)(2). The Nationwide Permit (NWP) program also provides mechanisms for the Corps' districts and divisions to respond to local conditions to ensure that any environmental effects are minimal. In addition to the review conducted by the Corps' Chief of Engineers before issuing a NWP, division engineers may modify NWPs and add regional conditions to limit their use and protect important resources. Id. § 330.5(c)(1). Moreover, if a division engineer determines that the use of a NWP to authorize activities within a particular watershed or geographic location will result in more than minimal individual or cumulative effects on the aquatic environment, then he or she may modify, suspend or revoke the NWP in that location. Id. § 330.4(e)(1). District engineers may impose project-specific conditions on NWPs to further ensure that aquatic resources and the public interest are protected. Id. § 330.1(d).

In most cases, applicants may proceed with authorized activities without notifying the district engineer. Id. §§ 330.1(e)(1). However, for NWPs that require advance notice and approval, a project proponent must provide a pre-construction notification (PCN) to the district engineer. Id. Upon receiving a PCN, the district engineer must determine whether the activity complies with the terms and conditions of the NWP and notify the project proponent accordingly. Id. §§ 330.1(e), 330.6(a). The district engineer may add additional conditions to ensure compliance with the statutory and regulatory requirements that the discharge result in minimal individual and cumulative adverse effects on the environment. Id. § 330.6(a)(3)(i). Moreover, if the adverse effects of a specific proposed project are more than minimal, the district engineer may exercise discretionary authority to require an individual permit for the proposed work. Id. §§ 330.1(d), 330.4(e), 330.5(c) & (d).

B. National Environmental Policy Act (NEPA)

NEPA is designed to “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321. Unlike the CWA, NEPA achieves this purpose by imposing procedural requirements that the agency must follow before taking action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Moreover, NEPA requires the agency to broadly disseminate its findings on the environmental impacts of its actions. Id. NEPA is a procedural statute, not a substantive one. Id. (citations omitted) (“Although [NEPA] procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.”). Thus, agency action that produces adverse environmental...